from the this-isn't-the-movies,-ari dept

Famed Hollywood super agent Ari Emanuel (the model for Jeremy Piven's character in Entourage, and the brother of Chicago mayor/former Obama chief of staff Rahm Emanuel) doesn't have a particularly good history when it comes to his understanding of how technology and policy will develop. Two years ago, he insisted that he was talking to President Obama about getting a three strikes law in place in the US. Last year, of course, he was excited about new laws like SOPA/PIPA. That was at the AllThingsD conference, in which he chided a reporter at one point by saying that the reporter needs a history lesson and "the business of the movie business is DVDs."

This year, at the very same conference, he's changed his tune, but not his attitude or ignorance of technology. This year, he told the crowd that "the DVD business is gone" and everything was about TV, TV, TV. Except, once again, he appears to be ignorant or (more likely) in complete denial:

Emanuel: Cord-cutting's not happening.

Walt: But cord-never is happening.

Emanuel: I don’t think so. I think when people get to a certain age, they pay. Somebody’s got to pay for this, or you’re not going to get premium content, and I think that’s more valuable than "two dogs doing whatever they’re doing on a couch."

Some of this appears to be just plain old wishful thinking and some of it is ignorance. The actual numbers show that cord cutting is very, very real. Also, I'm getting pretty sick of the condescending ridiculousness where people insist that either we stick with the old model or all we have left are amateur animal videos (usually cat videos, but Ari went to the dogs). That's not just elitist. It's wrong. There's plenty of quality content that get produced outside of the traditional model, and the amount is growing. And, of course, the "somebody's got to pay for this" argument is a complete tangent. First of all, no, no one has to pay for anything, but more importantly, there are all sorts of interesting business models developing that don't require people paying for a jacked up cable subscription. Second, just because you want someone "to pay" for the content which pays your hefty salary, that has absolutely nothing to do with the reality of cord cutting. It's like the CEO of a horse buggy manufacturer insisting that no one's buying automobiles because "someone's got to pay" for all those horse buggies.

A little tidbit from history: it was the guy who left the horse & buggy business and went on to found both GM and Chevrolet (despite being fearful of those "dangerous" machines) who ended up being successful. Not the guys who clung to selling horse and buggies.

Emanuel pays some lip service to technology innovation (he even seems to like the idea of crowdfunding), and talks about how involved he is in digital projects. But he still comes at it from the perspective of "how can these new technologies protect my old way of doing business?" And there, apparently, every problem is Google's fault, because they haven't created the magic "stop piracy" button. He repeatedly mentioned Google, and how they had to "stop helping people steal my clients' content." When asked how, he admitted he has no idea. When asked if he wants them to censor search results, he responded:

I don’t want them to censor results, but they have a bunch of smart guys there that can figure this stuff out.

You see? Magic "stop piracy" button.

Josh Topolsky, from The Verge, apparently challenged him on this point, asking: "Aren’t you saying that the road is responsible for the fact that someone drove on it before they robbed my house?" Emanuel didn't like this analogy:

That’s a stupid example. Look, Google can filter and does filter for child pornography. They do that already. So stealing is a bad thing, and child pornography is a bad thing.

Of course, this once again displays his ignorance. Child porn is easily identifiable by anyone who sees it. There is no "legal" child porn. There is no "authorized" child porn. There is no "fair use" child porn. There is no condition under which that content is legal and there are no legal questions to be answered in filtering it. Copyright is entirely different. You can't just "know" if the content is infringing. As we saw in the Viacom case, companies upload authorized stuff all the time, and it's often impossible to distinguish from unauthorized content. Separately, you can't create an algorithm that detects fair use. Or the public domain. Point being: it's not that easy and it's silly to claim otherwise.

Emanuel, like many people, also seems to have a blindness for how the situation he's in is no different than the situation others have faced. He talks about how the music industry should have embraced Napster when it came along -- but when he's asked about embracing similar platforms for TV, he immediately says that's ridiculous, because "these things cost lots of money." Again, we're in "wishful thinking" land, where because the producers of content do little to keep down costs, old and obsolete business models must stay in place, and new and innovative platforms must be censored.

The comment that really sums up his worldview is when he's asked about changing market behavior, whereby people mutlitask while watching TV. He says:

“I’m okay with a little bit of disruption, and let’s see what happens. I dunno. I’m good with it.”

This is the common viewpoint of the legacy player about to be disrupted in a big, bad way. They always insist that they're okay with disruption -- but in moderation. There are two really funny things about this quote. The first is the idea that disruption comes in bite-sized increments. That's not how it works. Disruption comes in massive waves that are unstoppable. And that leads to the second funny thing: he seems to think that his opinion on disruption and whether or not he's "good with it" matters to whether or not it will actually happen.

The disruption is already underway. And, for now, it looks like Emanuel's still hanging on to his cash-cow horse buggy business, while insisting that the road pavers really need to "do something" about those dangerous "automobile" things.

from the makes-sense dept

In a case that appears to parallel the Viacom/YouTube case in the US, French TV network TF1 sued YouTube/Google (and competitor Dailymotion), claiming that those sites were liable for infringing videos uploaded to the site. However, in a new ruling, a French court has dismissed the case. As with other, similar cases, the French court found that Google had made "sufficiently adequate efforts" to takedown infringing content when it found out about it. More specifically, the court properly noted that users were responsible for content uploaded, rather than the site.

"The defendant is not responsible in principle for the video content on its site; only the users of the site are," the decision reads.

"It has no obligation to police the content before it is put online as long as it informs users that posting television shows, music videos, concerts or advertisements without prior consent of the owner is not allowed."

The case went so poorly for TF1 that it was told to pay Google's legal expenses. TF1 has suggested that it will appeal, calling the ruling "surprising."

There have been a series of similar lawsuits filed around the globe, with mixed results, but hopefully we're reaching an era where courts (and companies) finally understand that a platform should never be directly liable for the actions of its users.

from the yay-dmca dept

Google's decision to be much more transparent about DMCA takedowns for search has revealed a swathe of absolutely ridiculously stupid DMCA notices. We've covered some already, but TorrentFreak has found some more -- including multiple cases of DMCA notices by copyright holders that aren't just against their own best interests, but are often against content they, themselves, put up. This isn't even a situation like Viacom suing YouTube over clips that Viacom's employees had uploaded. In those cases, at least, it involved attempts to make the clips look unauthorized.

It's almost as if the lawyers at Warner Bros. are so clueless that they were actively trying to hide any legitimate marketing for the movie. I'm sure their colleagues in the marketing department must have been just thrilled about these efforts.

The TorrentFreak article lists out a bunch more takedowns, directed at news sites, often promoting the works in question:

In addition to the Warner instance mentioned above, the RIAA asked Google to delist a review of the album Own The Night published on The Guardian. The artist behind the album is Lady Antebellum, signed to RIAA-member Capitol Records.

Even more worrying, the RIAA asked Google to delist Last.fm’s entire Electro Pop section because they thought it carried a pirate copy of All About Tonight by Pixie Lott.

Warner also reappeared later on, asking Google to delist a page on news site NME which lists information on the latest movies, which at the time included information on the movie Hall Pass. The same page on NME was targeted on several other occasions, including by anti-piracy company DtecNet on behalf of Lionsgate, who had info on The Hunger Games delisted.

Hollywood Reporter didn’t fare much better either. Sony Pictures asked Google to swing the banhammer against the popular news site after it published an article called “Trent Reznor Releases Six Free Tracks From ‘Girl With the Dragon Tattoo’ Soundtrack” and Sony mistook it for a DVDRIP.

But as soon as Sony’s piracy fears on the first ‘Dragon Tattoo’ movie had subsided they were back as strong as ever with the sequel. This time the sinner was Wikipedia who dared to put up an information page on the movie The Girl Who Played With Fire. Luckily Sony were on hand to ask Google to delist the page.

The more you play around, the more examples like this you can find. Zuffa, the notoriously litigious folks behind UFC, demanded a Hulu link be disappeared from Google search, despite Hulu only posting authorized content.

Sony Music and the Estate of Michael Jackson tried to get a page on Last.fm for Slave to the Rhythmremoved as infringing.

Let's see... we've got Universal Music/Interscope (by way of Web Sheriff) demanding that Google delete a link to Wall Street Journal post (reprinted from Mashable) embedding an official Lady Gaga video from last year. Oh, and that wasn't all. They also went after an MTV news article about the video shoot -- which did contain some footage that someone had shot from a distance, but that seems extreme to kill the whole article. Ditto for a NY Post article.

Sony Music Nashville was so worried about a Carrie Underwood leak that it tried to erase a Reuters archive page from 2008 that just lists a bunch of headlines -- none of which has anything to do with Carrie Underwood.

TorrentFreak noted above that the RIAA asked the Guardian to takedown its review of the Lady Antebellum album Own the Night, but that wasn't the only target. The RIAA demanded that Google remove a link to a review of Lady Antebellum songs on AOL's music site. Lady Antebellum was clearly so upset by AOL breaching its copyright that the band posed for a photo at AOL studios.

For most musicians, getting onto Pitchfork is a goal. For the RIAA? Well, apparently Pitchfork must be stopped. That's why it DMCA'd the tastemaker website for daring to post an article about Coldplay, in which they embedded a song directly from Coldplay's own YouTube account. The article even notes that the band had released the song to Pitchfork. Nice going RIAA, trying to stop your own bands from getting the publicity they seek.

Anyway, that's just after a little bit of searching... I'm sure we'll have more examples going forward... Thanks to the folks at Torrentfreak for their initial research which inspired some of these other findings as well.

from the how-nice-of-them dept

In Viacom's continuing efforts to make itself look pretty clueless and unsympathetic, it has decided to issue a takedown over a previously unseen clip of the Beastie Boys performing on The Chappelle Show, which was uploaded to YouTube by Chappelle Show co-creator, Neal Brennan. The episode it was filmed for never aired as it was supposed to be in Season 3 of the show, which famously (and tragically) never happened because Dave Chappelle decided to walk away from the show.

It's clear that Brennan uploaded the video as a tribute to Adam Yauch/MCA following his death. And that seems like a great gesture -- the kind of thing that Viacom might celebrate. As both of the links above note, the show was never aired, so this clip was just "gathering dust." There has been some talk that Viacom wanted to put together new shows using existing clips -- so I'm guessing that's part of the thinking that went into this (perhaps I'm being generous in assuming any thinking went into this at all).

Either way, it's actions like these that make people distrust and dislike big companies like Viacom even more. Here was an easy way to do something good. Viacom could have (and probably should have) celebrated this tribute, even to the point of directly calling attention to Brenna's YouTube upload. Instead, it went legal, and comes out looking like an unsympathetic bully.

from the funny-how-that-works dept

When the Betamax/VCR first came out, Hollywood insisted that it was pure evil and that it would be "the Boston Strangler" to the movie business. And, if you looked at how the devices were used at first, you could easily argue that the vast, vast majority of the usage was, in fact, infringing. In part, that was because the movie studios were so freaked out about such devices, they couldn't even comprehend offering licensed movies for home viewing at the time. Instead, the device was purely about "theft." Of course, after a drawn out trial, the Supreme Court (very closely) came down in favor of the VCR, and said that because it had substantial non-infringing uses, it was legal. Just a few years after that, the home video market for the major Hollywood studios was so large, that it was widely claimed that the VCR saved Hollywood, rather than killing it.

This story is not a unique one. We seem to see the same thing with every disruptive technology that old guard entertainment firms can't comprehend. When radio was introduced it was declared that it would kill the music industry. The RIAA worked hard to have the MP3 player declared illegal.

It happens over and over again -- and each and every time, soon afterwards, new markets emerge, new opportunities become abundantly clear, and the platform that was supposedly pure evil and bent on the destruction of the industry turns out to be a huge new revenue base and opportunity, usually providing revenue in ways that simply weren't possible before that new technology came along.

It sure looks like the same exact thing is happening with YouTube. As you probably know, Viacom is still engaged in a drawn out lawsuit against YouTube over many thousands of clips that Viacom insists were infringing and a massive blight on its bottom line.

And yet... because YouTube had the time to develop, something interesting has been happening. By now you're hopefully all familiar with ContentID. While it has its quirks and issues, one thing that is clear is that it's become a tremendous source of revenue for content creators to monetize works uploaded by others. But it's not just others. NPR has a story about how the major MPAA Hollywood studios -- including Viacom -- are now profiting nicely by purposely uploading all sorts of clips from their various movies, knowing that people are searching for and watching key moments... which they can monetize:

Oh, and the fun part: she gets to watch movies, pick the most memorable moments, and upload those clips to YouTube. Today, it's L.A. Story.

"We always pick a clip that has a beginning, middle and an end," says Strickland, pointing out the various fields she has to fill out in the content management system before she uploads a clip to YouTube. "I put everyone that's in the scene: so Steve Martin, Richard Grant, Victoria Tennant, Sarah Jessica Parker, I put some of the memorable dialogue — 'SanDeE your breasts feel weird, oh, that's because they're real' — then you put discussion topics, character types, settings, eras, what they're doing."

It consists of hours of tedious work to ensure this licensed content will show up first when you go searching for your favorite movie clip on YouTube. Not an easy task when 60 hours of video are uploaded to YouTube every minute.

This is a company that all the big MPAA studios are hiring to go out, find these clips in their own movies, and upload them (and then do things to get them to the top of Google searches). Apparently, it's quite lucrative for the studios. Of course, what's funny is that the same people who are now celebrating this new revenue stream are also the ones who just a few years ago insisted not only that YouTube was illegal, but that it was dead, because no money could be made from it. But, somehow, these things have a way of working themselves out if they're allowed to do so.

This is one of the things that is so troubling to me about the abrupt shutdown of Megaupload. While, at an initial glance, it's easy to insist that the service must be illegal, the company was actually very actively trying out unique new business models for artists, which many artists celebrated. But we'll never know how well those would have worked. When the VCR, radio, the MP3 player and YouTube first came on the scene, the industry insisted they were all just as bad as Megaupload. In hindsight those arguments seem pretty silly -- but it seems like we'll never be able to get that same hindsight for Megaupload. And that's a real shame for the content creators who almost certainly would have embraced new business models enabled by this new technology.

from the talking-at-cross-purposes dept

You may remember, in the wake of the SOPA/PIPA fight that Paramount Pictures (a Viacom company) reached out to a bunch of top law schools, asking if it could send its "Worldwide VP of Content Protection and Outreach" (seriously), Albert Perry, to teach the students about the evils of "content theft." It appears that Brooklyn Law School took them up on the offer, and Brooklyn Law school prof Derek Bambauer wrote up some great notes on the session. The law school also had professor Jason Mazzone (author of Copyfraud and this month's Techdirt book club author) provide a "response" to Perry.

Honestly, the talking points won't surprise anyone who pays attention to this stuff. Perry argues that Hollywood is suffering massively from "content theft" and that something must be done. Mazzone, thankfully, points out that Perry is being disingenuous in using the word "theft," when it's not theft under the law or in reality. Using the word "theft" unfairly biases the discussion and ignores both the realities of copyright, and the fact that copyright is not absolute. Perry, however, can't let go of the term, apparently. You could sum of Perry's talk by basically saying "well, the big Hollywood studios are suffering, and it's everyone's fault but our own."

He literally admits that there may be more indie films and such, but that those aren't the films that anyone cares about. Instead, you see, culture will be worse off if Hollywood can't produce the next Transformers movie:

While he said he didn’t want to get into copyright math, Perry noted that the number of films released by the six major motion picture studios has dropped from 204 in 2006 to 134 in 2011.... He suggested that online infringement affects ancillary (post-box office) revenues, which isn’t captured in rosy reports of ticket sales. Perry said he doesn’t believe that infringement will wipe out content – rather, it will shift it. We’ll see more small-budget or amateur films, and fewer major studio films. These movies, he suggested, are the iconic ones that people remember and reference, so piracy may have an important cultural impact.

Of course, there are a few problems in these claims. While the big six studios may have made fewer movies, many more movies were made overall in the global economy. Just looking at the US, while the major studios released 204 movies in 2006, indies released 390. His number is off in 2011. It was actually 141 movies released by the major studios... but indies increased their release numbers to 469. So, total movies released actually grew from 2006 until 2011. That certainly suggests that everyone else in the market is figuring out how to adapt. Why should we be concerned about six companies that are unwilling to adapt? And, is that ever condescending and insulting to suggest that indie movies can't possibly have the "cultural impact" of a movie like Jack and Jill.

Perry also praised totally one-sided and misleading "education campaigns" that copyright maximalist organizations like the Copyright Alliance have been able to get into schools, ignoring things like fair use (it was also noted that Perry ignored fair use in his initial statements). It's really silly that schools are accepting industry propaganda like that to teach kids. Thankfully, more accurate alternatives are being created.

The other bit of good news in all of this is that it sounds like the students were mostly skeptical of Perry's claims, and recognize that he's exaggerating -- though it sounded like he couldn't even comprehend where they were coming from:

The discussion was impressively thoughtful and civil. The students evinced skepticism about the movie industry’s good faith and bona fides, particularly given the drafting of SOPA / PROTECT IP, and also given the recording industry’s history of suing its users. Perry pointed out that Paramount is trying hard to make content available widely, cheaply, and easily, and that the only other way of altering the reward calculus to users is to engage in enforcement against end consumers, which no one likes. He was repeatedly puzzled by the attitude of law students that infringement isn’t a big deal (since it’s unlawful), particularly when this attitude is justified by reference to movie industry profits.

In the end, while it was civil, it sounds like the same old story of Hollywood just not understanding. The profits of six organizations is of little concern to the wider social benefit, and Hollywood cannot show that there's any wider harm (because there is no such proof). Thankfully, it appears that the students (and professors) at Brooklyn Law get this important point.

from the a-mixed-bag dept

We already covered the 2nd Circuit's ruling in the appeal of the Viacom/YouTube case, but I wanted to follow up after seeing much of the coverage. There have been a number of reports that outright declare this a "victory" for Viacom, which is a very generous reading of the ruling. To be sure, the appeals court reinstates the case that had been effectively shut down by the district court -- but it did so in a manner that rejected every single one of Viacom's interpretations of the law. The biggest concern in this lawsuit was that Viacom would be able to use it to effectively reinterpret the DMCA the way it wanted the law to act, rather than the way the law was actually written (and which the case law has supported for years). The court clearly rejected that attempt by Viacom.

But, of course, it wasn't a complete vindication for YouTube. Reviving the lawsuit is clearly a partial step backwards for YouTube, but it's entirely possible that they could still prevail in the district court on the specific points that were sent back for trial. And, in the details of why the appeals court revived the case are some significant problems, many of which are outlined in a thorough post by Eric Goldman. I don't agree that the ruling is quite as significant as Goldman does, but he does make some good points about problems with the setup of the DMCA's safe harbor and (equally troubling) the way the court ruled on a few key points that make little sense.

On the setup of the DMCA, Goldman notes that the real issue here is that the DMCA safe harbors have a bunch of different confusingly worded parts -- and to keep the safe harbors, you need to hit on every point, which is kind of ridiculous when you think about it:

Most importantly, this opinion exposes a structural deficiency of the 512(c) safe harbor. The statute's simply too long and detailed, and if a defendant fails to satisfy each and every element, the safe harbor is lost completely. This is reminiscent of military strategy and information security: the defense has to work equally well across its entire border, while the adversary can concentrate its attack and only has to succeed on one point of attack to win. The same is true with a 512(c) defense. So, it doesn't matter that YouTube won most of the points of contention; if any single point of contention fails, YouTube's 512(c) defense fails. As I've insisted before, this provides a good lesson for drafters of safe harbors and immunities--to work effectively, the safe harbors/immunities must be pithy and categorical, or else they create too many potential points of failure.

This is a really good point, and suggests that if the DMCA is to be fixed, the safe harbor provisions should be clearer that missing a single checkbox doesn't mean you automatically lose all safe harbors.

The second concern is how the court interpreted parts of the DMCA where it's been sent back to the lower court. As Goldman notes, the 2nd Circuit's decision to totally punt on "right and ability to control" is going to create a huge mess for a while, in which we can expect copyright holders to flood the 2nd Circuit with cases focusing on that point -- since the appeals court simply rejects the standards put forth by YouTube (which used an interpretation already accepted in the 9th Circuit) and Viacom (which used an interpretation that only made sense in the minds of Viacom execs) but fails to come up with its own standard. Meaning no one knows what the standard is... and that means that copyright holders have a chance to get the court to redefine it in their favor:

So the court agrees with no one. Given that it rejected everyone else's definitions, we might expect the court to carefully lay out what it thinks the phrase means. Sadly, no. The opinion doesn't provide an express definition of what qualifies as the "right and ability to control," instead sending that issue back to the district court to figure out both the standard and whether YouTube met it. The clearest clue the court provides about the standard is it "involve[s] a service provider exerting substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity." I have no idea what that means, other than that it's open season for plaintiff fiestas.

The fact that this will likely open up an opportunity for new lawsuits could be a pain for innovative companies who will face a new series of bogus legal attacks. Elsewhere, Goldman warns that the end result of this ruling will mean that startups that work with user generated comments are going to have to lawyer up at an earlier stage, and may have to take extra precautions which don't appear to be supported in law, just to avoid lawsuits.

In the end, the ruling is certainly not a "victory" for Viacom, but it does have significant problems. The district court could fix some of the problems by establishing that YouTube still gets safe harbors, even after the court's vague and directionless remand, but if that fails, perhaps this case and its differences from existing 9th Circuit case law would end up in the Supreme Court. That, of course, is risky, since the Supreme Court has been so consistently clueless when it comes to copyright cases.

from the some-good,-some-bad dept

The original ruling in the Viacom vs. YouTube case was a complete and total victory for YouTube. The court effectively dumped the case at the summary judgment stage, correctly recognizing that YouTube qualified for the DMCA's safe harbors, and that Viacom was trying to change the clear definitions in those safe harbor provisions. This upset many copyright maximalists, and we heard stories about how the ruling would never survive the appeal. To some extent that was correct. The ruling in the appeal came out today, and it definitely walks back some of the original ruling, but, on the whole, it still leans towards YouTube's position.

The key question in the lawsuit revolved around the so-called "red flag" knowledge question -- and whether or not that meant specific knowledge of items that were infringing (as YouTube and the lower court believed) or just general knowledge of infringement on the site (as Viacom argued). Here, the appeals court got it right, saying that specific knowledge is necessary.

Although the parties marshal a battery of other arguments on appeal, it is the text of the statute
that compels our conclusion. In particular, we are persuaded that the basic operation of § 512(c)
requires knowledge or awareness of specific infringing activity. Under § 512(c)(1)(A), knowledge or
awareness alone does not disqualify the service provider; rather, the provider that gains knowledge or
awareness of infringing activity retains safe-harbor protection if it “acts expeditiously to remove, or
disable access to, the material.” 17 U.S.C. § 512(c)(1)(A)(iii). Thus, the nature of the removal
obligation itself contemplates knowledge or awareness of specific infringing material, because
expeditious removal is possible only if the service provider knows with particularity which items to
remove. Indeed, to require expeditious removal in the absence of specific knowledge or awareness
would be to mandate an amorphous obligation to “take commercially reasonable steps” in response to
a generalized awareness of infringement. Viacom Br. 33. Such a view cannot be reconciled with the
language of the statute, which requires “expeditious[ ]” action to remove or disable “the material” at
issue. 17 U.S.C. § 512(c)(1)(A)(iii) (emphasis added).

The court rightfully rejects the idea that the "red flag" knowledge part of the DMCA means that just knowing that there's some infringement -- without knowing specifics -- means you lose the safe harbors. Since this is the key question in the lawsuit, it's great that the appeals court got this right. This was also the point that the maximalists insisted that no appeals court would uphold, and, clearly, they were wrong about that.

The court responds to the claim that if red flag knowledge does not apply to "general" knowledge of infringement, then it's superfluous, by noting that's not true:

The difference between actual and red flag knowledge is thus not between specific and
generalized knowledge, but instead between a subjective and an objective standard. In other words, the
actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific
infringement, while the red flag provision turns on whether the provider was subjectively aware of facts
that would have made the specific infringement “objectively” obvious to a reasonable person. The red
flag provision, because it incorporates an objective standard, is not swallowed up by the actual
knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do
independent work, and both apply only to specific instances of infringement.

In other words, it's possible to show that there are red flags, but they have to be red flags for infringement of specific items, not knowledge that there is infringement in general. That's a good ruling and it makes sense. Accepting Viacom's interpretation would have effectively killed large parts of the DMCA. YouTube's interpretation (now supported by both the district and the appeals court) keeps the DMCA's safe harbors in existence.

That said, the court then suggests that the district court may have erred in granting the summary judgment on that point. Here, the court is talking specifically about YouTube's actions, and saying that Viacom at least raised enough issues that it is possible to argue that YouTube did, in fact, have knowledge of specific infringement. In other words, the court agrees on the big picture interpretation of the law, but disagrees on the specific application by the district court. It doesn't mean that the court thinks that YouTube violated the DMCA -- just that Viacom at least raised enough issues that it should be handled by a jury in a trial, rather than decided at the summary judgment stage. So the case will now go back to the district court to be heard over that issue.

Even here, the judge notes that while Viacom pointed to some email evidence that YouTube execs may have known of some specific instances of infringement which they ignored, it also points out that it's unclear if those specific instances involve videos that are part of this lawsuit -- and that's necessary if YouTube is to lose its safe harbor provisions.

A second issue involves the question of whether or not YouTube exhibited "willful blindness" to infringement on the site. Here, the ruling is a bit troublesome. It notes that the DMCA does not refer to willful blindness (and that the DMCA does note that there is no duty to monitor). But... it then still suggests that there can be a willful blindness question under the DMCA if there is specific knowledge of infringement. So, again, going back to the main issue in this case, if Viacom can show specific knowledge, it might also be able to get YouTube for being "willfully blind." But, it's no sure thing that Viacom can actually show specific knowledge of clips that are a part of this lawsuit.

The third issue is the question of what "the right and ability to control" infringing activity means. Both YouTube and Viacom interpret that phrase differently... and here, the court rejects them both. The district court accepted YouTube's interpretation, saying (reasonably, in my opinion) that a service provider must know of the particular case before it is required to "control" it. That is, how can the "right and ability to control" apply to a situation where there is no specific issue at hand? What is the service provider expected to control if it doesn't know what it's controlling? Viacom, instead, argued that the issue around the "right and ability to control" created a magical "vicarious liability" for service providers if their services were used to infringe. Both courts reject that argument as making little sense and (importantly) going against the Congressional record (which specifically left out vicarious liability, which had been found in an earlier DMCA draft). Here, the appeals court tries to thread the needle with a somewhat confused ruling that doesn't quite agree with either side. It's not a vicarious liability standard, but it doesn't quite require specific knowledge. Instead, the court literally says "something more" is required -- and asks the district court to consider what that "something more" might be.

Finally, there's an issue of what "by reason of" storage means. The DMCA's safe harbors give protection for infringement that happens "by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider." YouTube (and the district court) pointed out that YouTube fits under this definition. Viacom tried to argue that YouTube does not qualify because it does much more than storage -- such as converting (transcoding) videos, offering playback of videos and offering "related videos." Viacom tried (at both levels) to argue that those functions go beyond mere storage, and do not qualify for safe harbor protections. Thankfully, the appeals court here agrees with the lower court and says those are protected. It notes that it's clear that Congress intended "service provider" to mean much more than just a storage provider. I should note that one of our frequent critics in the comments has been insistent that the DMCA was designed only to apply to pure storage providers -- but now we've got yet another detailed court ruling pointing out that this is 100% false.

However, the court does send one "feature" back to the lower court for review. It questions whether or not the syndication of videos to third party sites then falls outside the safe harbor provisions concerning "by reason of storage." The court isn't sure that this is outside the safe harbors, but at least asks the lower court to explore the issue.

In the end, this is a mostly good ruling. It gets the biggest question of law right, even if it's not sure about YouTube's specific actions. On some of the other points, it's a little fuzzy in its thinking, but this is still mostly a victory for YouTube at this stage (though, who knows how the lower court and a jury will rule on some of the specifics). It could have been a more complete victory, but this is hardly the complete rejection of the district court ruling that some maximalists insisted was going to be delivered.

from the still-not-getting-it dept

As Hollywood struggles to come up for breath and understand the nature of what hit them last month in the SOPA/PIPA debate, it appears they're still thinking that part of this is an "education" issue -- and if they could just tell young people how evil file sharing is that everything would be good. A whole bunch of folks have been passing on variations on the news that Paramount Pictures (owned by Viacom -- one of the major backers of SOPA/PIPA) wants to go talk to college kids. A bunch of universities received:

"an overnight fedex letter from Paramount expressing the extent to which they are ‘humbled’ and ‘surprised’ by the extent of the public reaction to SOPA/PIPA and asking to come to campus to talk to faculty and students about “content theft, its challenges, and possible ways to address it."

Paramount specifically asks to give a "formal presentation followed by an open discussion period or to participate in a class session." First of all, actually having open discussions would be a good first step, because that's been lacking in this whole debate. But, I'm not sure starting off that conversation by referring to copyright infringement as "content theft" is the best way to kick things off. I know that the industry has chosen "content theft" as its moral panic phrase of the year, after they realized that the people they'd unfairly branded as "pirates" had taken back that phrase and turned it to their own advantage.

Why not hold a truly open discussion in which everyone can participate and talk about ideas as to the true nature of the problem? That discussion is happening every day out there on the "wild west" of the internet, if only the folk at the studios actually wanted to join in. Perhaps if they did so, they wouldn't be so terrified of the internet.

from the hello-fair-use dept

Remember how, based on an audience question, Jon Stewart promised to study up on SOPA/PIPA for a future show. Looks like that happened. And, apparently, he did his homework before Wednesday, so he could actually use Wikipedia. In last night's show, Stewart used yesterday's blackouts and protests as a jumping off point to discuss the bill. There were two main points: (1) Congress is trying to pass laws about an internet they don't understand at all, and (2) fair use is incredibly important, and anything that potentially damages fair use is dangerous to culture. For the first point, he played some clips of Rep. Mel Watt proudly displaying his ignorance of technology -- and then points out that Watt is the ranking member on the IP sub-committee. He also mocks the calls during the markup from various Congressional Reps. to have a hearing with "the nerds" by reminding them that it's not "nerds" they're looking for... it's experts. Something in short supply in Congress. For the second point, he ably uses a ton of short clips, fair use style, to demonstrate how important fair use is to a show like his... while mocking Viacom and its own lawyers for trying to limit fair use. Good stuff all around. And yes, for those people who live in foreign countries that don't have a deal with Viacom, I apologize that you can't see the video below. It's just one more example of how Viacom encourages infringement by not giving people what they want.